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Wisconsin Supreme Court accepts three new cases

Madison, Wisconsin - May 17, 2013

The Wisconsin Supreme Court has voted to accept three new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available.

2010AP3015 Sausen v. Town of Black Creek Bd. of Review
This case involves a challenge to the assessment of some land used for hunting in the town of Black Creek in Outagamie County. The Supreme Court is expected to consider whether an assessment review board's classification of property is entitled to a presumption of correctness in the same way as the determination of the fair market value of the property. The court will also consider whether the classification of the land at issue as "productive forest land" was correct—either with or without the presumption.

Some background: There are two primary determinations that must be made in assessing a piece of real property for tax purposes. First, the property must be classified according to its nature or use. Second, the full value (fair market value) of the property must be determined.

The assessed value of 10 acres of Frank J. Sausen's property increased 150 percent, from $11,000 in 2008 to $27,500 in 2009. Sausen does not dispute that the $27,500 valuation represents the fair market value or full value of the land. He nonetheless challenged the assessment, arguing that the land was improperly classified by the assessor as "productive forest land." Sausen argued that the property would have been more properly classified as "undeveloped land." This would have had a substantial impact on the amount of taxes he was required to pay because "productive forest land" is taxed at 100 percent of its value while "undeveloped land" is assessed at 50 percent of its full value.

At a hearing on Sausen's challenge, the town Board of Review heard testimony from both the town's assessor and Sausen. The Board also considered aerial maps of the area. One of the maps came from the Wisconsin Department of Natural Resources (DNR) and it listed the area including Sausen's property as "forested wetlands." The second map came from the U.S. Department of the Interior, which described the land at issue as part "woodland" and part "wooded marsh or swamp." Both Sausen and the assessor testified about the maps and the nature of the property. Sausen emphasized the wetlands and swamp portions of the government designations, while the assessor focused on the terms "forested" and "wooded." The assessor testified that Sausen's property was essentially covered by trees and that the assessor considered the woods on the property to be "low-grade cedar."

Ultimately, the Board voted to deny the reclassification of the property sought by Sausen. Sausen filed a certiorari petition in the Outagamie County Circuit Court, which denied the petition and affirmed the Board's decision.

The Court of Appeals affirmed, concluding that it had been Sausen's burden to present evidence that the property was not "productive forest land." It concluded that the application of such a presumption was supported by Wis. Stat. § 70.47(8)(i), which provides, in pertinent part: "The board shall presume that the assessor's valuation is correct. That presumption may be rebutted by a sufficient showing by the objector that the valuation is incorrect."

Sausen had asserted that there was no evidence in the record that the property met the statutory definition of "productive forest land." He contends that the Court of Appeals improperly relied on Wis. Stat. § 70.47(8)(i) to place a burden on him to show that the classification by the assessor was incorrect. He argues that the presumption of correctness in that statutory section extends only to the assessor's valuation, and not to the assessor's classification, which must be supported by sufficient evidence in the record developed before the board of review. Sausen asserts that the Court of Appeals' decision implicitly extended that presumption to classifications and therefore extended the law.

The Board of Review argues that the Court of Appeals did not really extend the presumption of correctness beyond existing law. It acknowledges the standard of review cited by Sausen in ABKA Ltd. Partnership v. Board of Review of Village of Fontana-On-Geneva Lake, 231 Wis. 2d 328, 335-36, 603 N.W.2d 217 (1999). It notes, however, that in deciding whether there is sufficient evidence to sustain an assessment, "‘[t]he presumptions are all in favor of the rightful action of the Board.'" ABKA Ltd. P'ship, (quoting State ex rel. Boostrom v. Board of Review, 42 Wis. 2d 149, 155, 166 N.W.2d 184 (1969)). Indeed, it contends that the presumption of correctness extends to both classification and valuation determinations. See Peninsular Power Co. v. Wisconsin Tax Commission, 195 Wis. 231, 218 N.W. 371 (1928).

Even without the presumption of correctness, the Board argues that the testimony of both Sausen and the assessor, as well as the maps presented during the hearing, were sufficient to render the Board's classification a "reasonable view of the evidence." Thus, the Board essentially argues that even under the standard utilized by Sausen, its decision must be upheld. From Outagamie County.

2011AP2597 Associated Bank N.A. v. Collier
In this somewhat complicated and fact-specific case, the Supreme Court reviews two issues arising from a collection action involving competing lawsuits, liens, and judgments in Waukesha County: - whether a creditor's right to obtain a common law creditor's/receiver's lien against a judgment debtor's personal property is conditioned upon docketing the judgment in the judgment and lien docket under Wis. Stat. § 806.10(1); and - whether a judgment creditor is entitled to relief, in the form of a declaration that its judgment is effectively docketed in the judgment and lien docket, when the clerk accepts the docketing fee but fails to perform the ministerial duty of actually recording the judgment in the docket.

Some background: In December 2009, Associated Bank, N.A. (Associated), filed a foreclosure action seeking a deficiency judgment against Jack W. Collier. Associated won a nearly $11 million default judgment against Collier. Associated docketed the judgment on May 28, 2010.

SB1 Waukesha County LLC (SB1) purchased approximately $8.6 million of Associated's judgment and joined the underlying trial court action as a co-plaintiff. In September 2010, SB1 initiated supplementary proceedings under Wis. Stat. ch. 816 ("Remedies Supplementary to Execution") in an effort to collect its judgment.

SB1 obtained orders to appear against Collier and Jeffrey Keierleber, owner of Decade Properties, Inc. (Decade) and a frequent business partner of Collier's. SB1 obtained personal service of the order to appear on Keierleber on Sept. 22, 2010. However, it took many months to accomplish service of Collier. SB1 claims that Collier purposefully evaded service, whereas Decade claimed that SB1 was dilatory in its service efforts.

Soon after being served with the order to appear, Keierleber, Decade (which is wholly owned by Keierleber) and certain jointly-owned Keierleber/Collier businesses filed six lawsuits to collect on outstanding loans made to Collier or to jointly-owned Keierleber/Collier businesses. While still unserved with SB1's order to appear, Collier quickly accepted service of these six complaints, and the parties to those lawsuits quickly executed stipulations agreeing to judgment amounts in each. SB1 claims that these complaints and stipulated judgments were a scheme to avoid the SB1 judgment and take lien priority away from SB1.

One of these six judgments is at issue here. On Oct. 22, 2010, Decade filed the judgment and paid the fee to have it docketed and received a receipt. However, through administrative error, the circuit court clerk's office did not docket the judgment.

Decade, unaware that its judgment against Collier was undocketed, initiated supplemental proceedings against Collier. Decade obtained an order to appear for supplemental examination and, on Nov. 16, 2010, Collier accepted service of the order. On Nov. 22, 2010, Collier appeared for a supplemental examination by Decade. Meanwhile, it took SB1 until April 2, 2011 to obtain service on Collier, who then failed to appear as ordered. On June 10, 2011, the trial court found Collier in contempt.

Decade moved to intervene in SB1's action in an effort to assert its assumed lien priority. However, on June 29, 2011, Decade discovered that the circuit court clerk had failed to docket its judgment against Collier. The clerk docketed the judgment the same day Decade discovered the clerk's error. Holding its prior-docketed judgment, SB1 filed a motion for turnover of various assets owned by Collier. These assets included all rights, title, and interest vested in Collier to unasserted counterclaims or affirmative defenses on his behalf, including those relative to his interests in the six new cases filed by Decade, including all potential claims against third parties.

Holding its later-docketed judgment, Decade filed a summary judgment motion arguing that it nevertheless had priority status over SB1 because it had served Collier with an order to appear at a supplemental examination before SB1 served Collier with its order to appear. According to Decade, the act of serving Collier with an order to appear created a senior lien regardless of whether its underlying judgment was docketed or not.

The trial court denied Decade's summary judgment motion and held that Decade's lien was subordinate to SB1's lien. The court further ruled that all SB1's liens were superior to Decade's and that any actions, proceedings, liens, or orders relative to Decade's undocketed judgment before June 29, 2011 (the date the clerk finally docketed Decade's judgment) that might affect SB1's supplemental proceedings or attempt to execute on the judgment were "held for naught." Further, the court granted SB1's motion for turnover, ordering that all rights, title and interest vested in Collier to unasserted counterclaims or affirmative defenses on his behalf, including those relative to his interests in the six new cases, including all potential claims against third parties, were now vested in, with exclusive possession and control granted to, the supplementary receiver. The trial court subsequently denied Decade's motion for reconsideration. Decade appealed, unsuccessfully.

A decision by the Supreme Court could clarify the law in this area, including the meaning and effect of "entering," "executing," and "executable" judgments; the meaning and effect of "perfecting" judgments and "perfecting" liens; and the question of whether, and of what priority, a lien may arise from a money judgment without that judgment ever being docketed. From Waukesha County.

2011AP2905-CR State v. Badzinski
This case examines whether a defendant in a child sexual assault case was deprived of his right to a unanimous verdict of guilt beyond a reasonable doubt. The question arose when the trial court answered "no" to the deliberating jury's question whether jurors had to agree on the room in which a sexual assault allegedly occurred.

Some background: In April 2006, a 15-year-old girl reported to police that she had a past history of sexual abuse but did not provide any detail. In August 2009, the girl told her mother that when she was between the ages of four and six years old, Darryl J. Badzinski once showed her his penis and made her touch it. The girl reported those details to the police eight weeks after telling her mother.

In October 2009, the state filed a criminal complaint against Badzinski, charging him with first-degree sexual assault of a child under 13 years of age. The complaint alleged that Badzinski had sexual contact with the girl "when she [was] approximately five or six years old, either at Christmas or at Easter time, during that time period, which would be from approximately Oct. 2, 1995 through April 30, 1998" at the girl's grandparents' house.

Prior to trial, Badzinski had filed a motion to dismiss the complaint on the grounds that it failed to state with sufficient particularity the date of the sexual assault and failed to give him adequate notice of the charge against him. The trial court said that it interpreted the complaint to set forth six specific dates: Christmas of 1995, 1996, and 1997, and Easter of 1996, 1997, and 1998. Trial defense counsel agreed that he could prepare a defense for those six specific dates, as long as the court assured him that at trial the state would be limited to arguing that the offense occurred on one of those dates. The court then instructed the state to amend the information accordingly, which it did.

At trial, the girl testified that the assault occurred when she was between four and six years old, on either Christmas or Easter, in a basement laundry room at her grandparents' house. At trial, Badzinski denied all of the girl's accusations. Multiple family members testified at trial on Badzinski's behalf.

During deliberations, the jurors submitted a question to the trial court asking whether they must agree on the "place" that the sexual assault occurred. The parties agreed that the trial court would send back a note indicating that the jurors must all agree that the assault occurred at the grandparents' home address. The jurors then submitted an additional question asking whether they had to agree on which room the assault occurred in. Over the defense's objection, the trial court simply answered, "[N]o."

The jury found Badzinski guilty. Badzinski filed a post-conviction motion that raised five issues, including that the trial court's answer to the jury question resulted in a denial of his right to a unanimous verdict. The trial court denied Badzinski's postconviction motion.

Badzinski appealed. A divided Court of Appeals reversed Badzinski's conviction and remanded for a new trial. A majority of the court concluded that the trial court erred when it answered the jury's question. The majority also concluded that Badzinski was entitled to a new trial. From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2011AP2544 Pamperin Rentals II v. R.G. Hendricks & Sons
2012AP1280-W Stokes v. Pugh

2011AP1987 M&I Marshall & Ilsley v. Nunnery - Chief Justice Shirley S. Abrahamson and Justices David T. Prosser, Jr. and Annette Kingsland Ziegler did not participate.

Eau Claire
2011AP2809 Satorius v. Proassurance

2011AP581 State v. Jacobson

2011AP1067-CR State v. Kent

2011AP52-CR State v. Shelton

2011AP441 State v. Dukic - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2011AP830-CR State v. Buchanan
2011AP981-CR State v. Dehne - Chief Justice Shirley S. Abrahamson dissents.
2011AP1837 State v. Oswald
2011AP2052-CR State v. Warrior - Chief Justice Shirley S. Abrahamson dissents.
2011AP2059-CR State v. Seymour
2011AP2386 State v. Washington
2011AP2851-CR State v. Young
2011AP2898-CR State v. Harris - Chief Justice Shirley S. Abrahamson dissents.
2012AP94-CR State v. Vaughn - Chief Justice Shirley S. Abrahamson dissents.
2012AP645-CRNM State v. Tyler
2012AP810 City of Milwaukee v. Sherard

2011AP1079 CNH America v. AMETEK
2012AP329-CR State v. Fernandez

2012AP174-CR State v. Depaoli

Tom Sheehan
Court Information Officer
(608) 261-6640

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